Season’s greetings! As we all begin the sprint into 2022, January 10th and February 9th are key dates on which to keep an eye on! The Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination Testing Emergency Temporary Standard (ETS (also commonly referred to as the “vax or text” mandate)). The ETS has been mired in legal battles regarding its implementation and compliance deadlines are fast approaching (see below). Notwithstanding these disputes, ETA still requires covered employers with 100 or more employees to keep records of their vaccination status, provide specific information about vaccines, and develop and implement policies about vaccinations and testing by January 10, 2022. The ETS also requires employers to allow for weekly COVID-19 testing for employees who are not vaccinated. Testing implementation must begin by February 9, 2022.
In other words, the ETS mandates that covered employers either: (1) require all employees to be vaccinated unless the employee qualifies for a medical or religious exemption or, (2) provide employees with the election to either show proof of vaccination status or participate in at least once-weekly testing. Either way, the ETS requires covered employers to implement a mandatory vaccination policy. The policy must also include a process for accommodations for employees that cannot be vaccinated under the medical or religious exemptions. The policy must state that employees are subject to mandatory vaccinations or weekly testing or equivalent safeguarding such as 100% remote work. While not required, employers should seriously consider training employees, especially managers, on the company’s vaccine policies.
During the interim, lawyers and judges continue to ponder if the ETS mandate, President Biden’s Executive Orders on executive branch employees and federal contractors and others can be implemented throughout the country. On December 17, 2021, the Sixth Circuit Court of Appeals lifted the “stay” (or “hold”) on the ETS implementation. On the same day, the Eleventh Circuit Court declined to lift a preliminary injunction that would have prevented implementation of the Biden Administration’s Federal Contractor Mandate. This mandate requires federal contractors to be vaccinated absent narrowly applied disability or religious exemptions. Shortly thereafter, both federal court decisions were appealed to the U.S. Supreme Court. As of this edition of Employment Wisdom on the Go, we do not yet know whether the Supreme Court will take up these challenges. We are closely monitoring every development.
On a practical level, while the legal battles described above continue to percolate, the federal contractor mandate is currently stayed, while the ETS is not stayed. OSHA’s “holiday extension” of January 10th and February 9th, respectively, are valid deadlines under the ETS. Therefore, employers should prepare and continue developing COVID-19 programs to comply with the “vax or test” mandate, including collecting employees’ vaccination status, drafting an ETS policy, creating a testing protocol, and employee training on your policies.
As always, the employment team at Skelton Taintor & Abbott continues to monitor the on-going developments. Please do not hesitate to reach out should you have any questions or concerns.